10 Questions To Ponder Before Your Initial Divorce Consultation

Tomorrow, Jessica Perroni is appearing on “The Jury Is Out” on KVIG Radio to discuss this…

By: Jessica Perroni and Heather White

What percentage of your cases are in the county where I live?

Generally speaking, if you are planning to file for divorce, you will most likely file in the county that you and your spouse reside (assuming you both reside in the same county). Hiring an attorney that practices in that county can be helpful because that attorney is likely to have familiarity with the Courts in that county. This translates to having an attorney with experience in the Courts of YOUR county: she is accustomed to local policies, procedures, and rules, and is acquainted with local Court staff, experts, mediators, counselors, etc. An attorney with this type of familiarity can be advantageous compared to an attorney who has limited or no experience in your county.

As a stay-at-home mom/dad, does this affect my financial outcome of the divorce?

In Texas, unless you have a pre-marital agreement that says otherwise, all income earned during the marriage, by either spouse, is considered the property of both spouses, even if only one spouse technically earned the income. This is true for all income, no matter how it was earned, or where it was deposited. For example, income earned from a rental home, or income deposited into a retirement account is the property of both spouses and is subject to division upon divorce.

Unfortunately, however, Texas does not have alimony. However, in Texas, a spouse may be entitled to spousal maintenance, which usually comes in the form of installment payments made by one spouse to the other after divorce for a very limited period of time. The caveat to spousal maintenance is that the amount is capped, there is no guarantee that a spouse will receive maintenance post-divorce; and thus, it should never be relied upon. Being a stay-at-home parent, by itself, does not qualify one for spousal maintenance. In general, the law in Texas is going to require a stay-at-home parent to find work unless the estate is large enough to sustain the stay-at-home option post-divorce.

What can I do to mitigate attorney’s fees?

Be organized. Your attorney will need to know the details of your finances, have access to your personal documents, and lots, and lots of additional information. Your attorney will ask for it and anticipate you will provide it in a timely manner – so provide it! When you provide any information to your attorney, provide it in an organized manner and in an electronic format, such as a thumb drive or in an email attachment, rather than in multiple emails.

Be patient. If you and your attorney have effectively communicated and decided upon a strategy for your case, keep in mind this can often take time to execute. Remember to consider that there are multiple parties and persons involved in this process, so it can take time for the process to play out and your attorney to accomplish his or her job. Your attorney has an ethical duty to keep you updated during the process. Therefore, generally speaking, no news from your attorney is just that, no news. Unless you have new information to provide your attorney, calling and/or emailing your attorney everyday will do nothing but increase your anxiety and your bill. While your attorney loves speaking to you on a daily basis, you won’t love it when you see your monthly bill.

Be prepared. Don’t send numerous, daily emails or text messages to your attorney. Save up your questions in one email, one phone conference, or one meeting so that you can avoid follow up communications when possible. Prepare your goals and expectations so that you can effectively communicate the same to your attorney. During the divorce process, there are many facets that you may not have control of, being prepared can help.

What percentage of your cases are family law?

It is important to hire an attorney that has experience in divorce. This sounds trivial, but would you see a brain surgeon for your heart problem? We would not. The same analysis should apply to your divorce. When choosing the “right” attorney, you should choose one that fits you. The fact of the matter is, you don’t necessarily need a “bulldog,” a 50-year experienced divorce attorney, or the “best divorce attorney in town” [even though we are]. What you need is someone who will listen to you, someone you feel comfortable with, someone who practices majority (if not exclusively) family law, and most importantly, someone you can trust.

In addition, to skill, you want an attorney who is empathetic to you and can offer valuable life advice. While you may need a divorce attorney during this difficult time in your life, you also need a counselor at law. Does your case require attention to sensitive topics? For example, is your spouse an addict or have they committed adultery? Are your children having a tough time with this transition? Is CPS involved? Do you have a complicated estate that needs expert help to divide? If so, ask your prospective divorce attorney if they have experience in working with these sensitive topics. While an attorney with a “bulldog” reputation can be beneficial in a courtroom, this does not necessarily aid your transition during this difficult process.

What is your retainer and when do you require replenishment?

Most divorce attorneys require a retainer to secure services. Most people have never had to pay a retainer of any kind, so they think. In reality, a retainer is sort of like a Toll Tag account/piggy bank. You have to pay a certain amount up front, and each month, your account is deducted depending on how many tolls you drive through. When your up-front deposit is depleted, you have to replenish. That’s a retainer. Once you’ve decided on an attorney that you like, make sure you understand in full detail your financial obligations and expectations with regard to payment of a retainer and replenishment of the same.

How do you decide what to charge me?

It varies by attorney. Generally speaking, attorneys charge you based on the actual costs and time spent on your case. For example, some attorneys charge in increments of time such as fifteen minutes, or six minutes, or twelve minutes . . . Essentially, every time your attorney or a staff member performs any work on your case, you are charged for the amount of time spent each time, which is multiplied by the attorney’s or staff member’s billable rate. A billable rate is the amount of money each attorney and staff member at a law office charges per hour, and it is typically based on experience.

What does “custody” really mean? And, what the heck is a “primary” parent?

Technically, the Texas Family Code [i.e. the rules and laws we are required to follow] rarely refers to the word “custody,” but it is often utilized colloquially. Instead of formally using the word “custody,” Texas law focuses on parenting plans that are comprised of three major components. The first component is called “conservatorship,” which is the legal custody of a child. Conservatorship defines which parent(s) can make decisions related to their children, for example, their education, health, residency, etc. The second component is called “possession and access,” which is the physical custody of a child. Possession and access defines when each parent will have physical custody of their child. The third component is called “support,” which includes child support and medical support.

A “primary” parent does NOT mean that such parent is the primary decision maker for the child. If one parent is designated as the “primary” parent, this simply means that such parent has the exclusive right to designate the primary residence of the child.

What are the pros and cons between the Court deciding my case versus reaching an agreement? Where does mediation apply in all of this?

There are not many pros for allowing the Court to decide your case, but sometimes, it is inevitable and necessary. Reaching an agreement with your spouse, whether informally, through attorneys, or through alternative methods, such as mediation, is often preferred and recommended because in such instances the spouses retain control of the major decisions that divorce requires. As soon as two spouses enter a Courtroom, they lose complete decision making power and control, and instead hand this ability and right over to the Court. Mediation is a common alternative dispute resolution tool used in divorce. Mediation is helpful when the spouses have reached an impasse, either with or without Attorneys, and need a neutral, third party mediator to guide them to an agreement. However, in some instances, agreements cannot be reached and Court intervention is necessary, especially when family violence is involved.

What is collaborative law? How is collaborative law different than mediation? Is my case a good candidate for collaborative law?

“Very simply, collaborative law is a legal process through which divorcing spouses agree to settle matters privately and outside the courtroom from the beginning.” – Natalie Gregg

Many people wonder what the difference is between collaborative law and mediation. Collaborative law is a way to get divorced; whereas, mediation is a way to reach an agreement. Collaborative law often uses mediation, but mediation, by itself, is not collaborative law.

Whether or not your case is a good candidate for collaborative law is a complex analysis and depends on many variables, including but not limited to your relationship with your spouse, your goals, your interests, your estate, and the unique intricacies of your case. For example, if you and your spouse cannot agree on the color of the sky, collaborative law is probably not the best option for you.

Can I represent myself in my divorce?

“Did you know it is legal in Texas to remove your own appendix? Well, it is, but I would not do it.” – Judge Mark Rusch of the 401st Judicial District Court, Collin County, Texas. Another famous quote (by anonymous): “A lawyer who represents themselves has a fool for client.”

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